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May 4 — Democrats have for years been pushing legislation they say would make it easier to root out sex-based pay discrimination, but some plaintiffs' lawyers told Bloomberg BNA it doesn't address one of the biggest obstacles in these cases: finding workers who a court will agree are doing the same job.

“The Equal Pay Act is an insufficient piece of legislation to address the persistent wage gap,” Debra Katz, an employment attorney in Washington, told Bloomberg BNA April 27. “Because of job segregation and the way workplaces are set up, it's often difficult to compare how men and women are being paid.”

Wage discrimination cases rarely include evidence that an employer is purposely paying one worker less than another because of their sex. That leaves worker advocates looking for male employees who they can show are making more money than their female colleagues despite doing the same job.

Congress has been locked in a standoff over how to close gaps in pay based on sex and race, a persistent disparity that varies depending on which study you believe (70 DLR A-4, 4/12/16).

Lawmakers have used a lot of energy debating proposed tweaks to the standard of proof and available damages in these cases. Practitioners say courts have handcuffed them by narrowly restricting the range of workers treated as doing the same job for comparison purposes.

Little Movement in Congress

Democrats have been urging Congress to pass the Paycheck Fairness Act (H.R. 1619, S. 862), with little success, since 1997. The House approved the measure in 2009, but the legislation has been consistently blocked by Republican filibuster and disinterest in the Senate.

The bill would protect workers from retaliation for inquiring about or sharing pay information. It would also require employers to prove that any difference in pay is based on a “bona fide factor other than sex” and would allow for uncapped punitive damages in cases of willful discrimination.

Republicans have criticized the Paycheck Fairness Act, calling it a boon for trial lawyers that would allow them to second-guess flexible work arrangements and compensation decisions that aren't related to sex.

Sen. Deb Fischer (R-Neb.) has offered competing legislation that would provide more limited protection for employees who share pay information.

“While it is very well intentioned, it will ultimately hurt flexibility for women to form unique work arrangements and it will undermine merit-based pay,” Fischer said of the Democrat-backed legislation in Senate floor remarks last month. “Instead, we should be empowering both employers and employees to negotiate flexible work arrangements to best meet their individual needs.”

Meanwhile, the Equal Employment Opportunity Commission is working to make pay information more readily available to workers. The agency is proposing to require employers with more than 100 workers to divulge summary pay data grouped by sex, race and ethnicity (19 DLR AA-1, 1/29/16).

The EEOC is currently sifting through public comments on the proposal (70 DLR AA-1, 4/12/16) and expects to issue a final version by September.

‘Very Uphill Battle.'

Katz and Douglas Wigdor, who is representing a group of New York Times Co. workers suing for pay and other discrimination (82 DLR A-14, 4/28/16), said the Paycheck Fairness Act could help employees prove liability. They also said the bill would create additional incentives for employers to pay their workers fairly up front.

“To the extent that an employee can show that they are in the same job as somebody else, then the employer should have to show why one is being paid more than the other,” Wigdor told Bloomberg BNA April 26.

A number of attorneys added, however, that courts have made wage discrimination cases difficult to prove by limiting the types of workers an employee can use as comparators.

“The changes that are being suggested are certainly a step in the right direction, but I think the way the law has been interpreted in the courts still makes it a very uphill battle for plaintiffs to win under the Equal Pay Act,” Chicago employment lawyer Noelle Brennan told Bloomberg BNA.

Brennan, a former EEOC attorney, recently helped secure a $7.21 million settlement for a group of black Comcast Corp. workers alleging discrimination and harassment (37 DLR A-2, 2/25/16).

The Equal Pay Act requires employers to pay their workers the same amount “for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.”

Attorneys told Bloomberg BNA that courts have been inclined to side with employers that draw what appear to be minor distinctions between what otherwise is the same position.

Titles, Job Codes Not Enough

Matthew Koski is a program director at the National Employment Lawyers Association. He said the limited comparators, combined with a catch-all defense that protects employers from liability as long as they can point to any reason other than sex for pay differences, makes it tough for workers to prove pay discrimination.

“Those standards make it highly likely that many of these cases are washed out on summary judgment,” Koski said.

In 2014, the U.S. Court of Appeals for the Second Circuit dismissed an EEOC lawsuit alleging the Port Authority of New York and New Jersey paid female attorneys less than their male counterparts (EEOC v. Port Auth. of N.Y. & N.J., 2014 BL 269614, No. 13-2705-cv (2d Cir. 2004)) (188 DLR AA-1, 9/29/14).

The appeals court said the fact that the lawyers were classified in the same job code wasn't enough to prove that they were doing substantially the same work. Instead, it explained that the agency had to “establish that the jobs compared entail common duties or content, and do not simply overlap in titles or classifications.”

Wigdor, who is the founding partner of Wigdor LLP in New York, told Bloomberg BNA his experience running his own firm makes him sympathetic to both sides of the issue. He raised some concerns that are likely to be echoed in Congress in the event that legislation to soften the comparator standard is eventually introduced.

“I’m a small business owner myself and just because I have two lawyers that are third years, that doesn’t necessarily mean that they should be paid the same,” Wigdor said. “So I would hate to see companies moving to lock-step compensation rather than pay for performance, because I think that really is the American way.”

To contact the reporter on this story: Chris Opfer in Washington at copfer@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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